from the Superior Court in La Paz County No. S1500SV201200004
The Honorable Douglas Camacho, Judge Pro Tempore
Rideout Law, PLLC, Lake Havasu City By Wendy Marcus Counsel
Jessica L. Quickle, Attorney at Law, Parker By Jessica L.
Quickle Counsel for Appellee Mother
of the Attorney General, Colorado River Indian Tribes, Parker
By Elizabeth M. Lorina-Mills, LeeAnne Kane Counsel for
Appellees Colorado River Indian Tribes
Presiding Judge Diane M. Johnsen delivered the opinion of the
Court, in which Judge Jon W. Thompson and Judge John C.
This appeal requires us to consider application of the Indian
Child Welfare Act of 1978 ("ICWA") to a private
severance proceeding brought by an Indian parent against a
non-Indian parent on grounds of abandonment. For the reasons
that follow, we affirm the superior court's denial of the
AND PROCEDURAL HISTORY
Stephanie H. ("Mother") and Garrett S.
("Father") have two children, born in 2000 and
2002, respectively. Upon Mother and Father's divorce in
2005, the court awarded Mother "sole primary care,
custody, and control" of the children and granted Father
In February 2009, Mother and the children abruptly moved from
Northern Arizona to a town south of Phoenix without the
court's permission and without notice to Father. On
Father's ex parte petition for relief, the court
found the children were at risk of harm and awarded Father
"temporary sole legal and physical custody." At the
return hearing, Mother lied about the children's
whereabouts. After the children were returned to Father a few
days later, the court found Mother guilty of perjury and
imposed a term of probation that required her to submit to
drug testing and substance-abuse counseling.
A few months later, the court awarded Father "continued
sole legal and physical custody" of the children,
contingent upon his submission to hair follicle drug testing.
The court granted Mother supervised visitation, also
contingent upon hair follicle drug testing. Father complied
with the drug test requirement within a few weeks, but Mother
did not. At a review hearing in August 2009, the court
reaffirmed that Mother could have "no visitation and no
contact by any means (phone, texting, and visiting schools)
with the children until the drug testing [was]
completed." After that order, Mother took and passed
three hair follicle drug tests, one in 2010 and two in 2014.
Between June 2011 and October 2013, as a requirement of her
probation, Mother submitted to 72 random urinalyses, 69 of
which were negative. In August 2011, she successfully
completed a 12-step drug and alcohol recovery program.
Father filed a petition to sever Mother's parental rights
in December 2012, alleging abandonment and neglect pursuant
to Arizona Revised Statutes ("A.R.S.") section
8-533(B)(1), (2) (2017). Various pretrial proceedings and
several reassignments of judicial officers caused trial to be
delayed until January 2016. In the meantime, Mother made
multiple child-support payments between August 2012 and March
2014 and completed a parenting class. Mother also filed for
visitation in 2013 and 2014. Father opposed Mother's
petitions for visitation, which the court denied. By the time
of trial, Mother had not seen the children since May 2009.
The Colorado River Indian Tribes intervened in the severance
case and fully participated at trial. All parties
acknowledged that the two children were Indian children under
ICWA, 25 U.S.C. § 1903(4) (2012). Accordingly, before
the court could sever Mother's parental rights, Father
would need to prove that (1) active efforts were made to
prevent the breakup of the Indian family, (2) those efforts
were unsuccessful and (3) continued custody by Mother was
likely to result in serious emotional or physical damage to
the children. See 25 U.S.C. § 1912(d), (f)
At the close of Father's case, Mother moved to dismiss
pursuant to Arizona Rule of Procedure for the Juvenile Court
66(F)(3). The court ruled Father had offered sufficient
evidence to go forward on abandonment but not neglect. The
court found sufficient evidence to show severance would be in
the best interests of the children, see A.R.S.
§ 8-533(B), and, addressing one of the required ICWA
elements, "at least some" evidence that continued
custody by Mother was likely to result in serious emotional
or physical damage to the children, see 25 U.S.C.
§ 1912(f). The court, however, granted Mother's
motion to dismiss because it found Father had not offered
sufficient evidence to prove unsuccessful "active
efforts" to prevent breakup of the family. See
25 U.S.C. § 1912(d).
The children timely appealed the dismissal of the petition
for severance. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and pursuant to A.R.S.
§§ 8-235(A) (2017), 12-1201(A)(1) ...